Smt. Kalawati and Another vs Sonpal (deceased) through his LRs

Pankaj Mithal, J.—Two properties are in dispute. One of the properties is a house situate over plot No. 996 in Mohalla Maharanapratap Nagar, Etah. The sale deed dated 30.4.1949 of the land of the said house is in the name of Smt. Kalawati. The other property which has been referred as second house is in the name of Munni minor daughter through her mother Smt. Kalawati as per sale deed dated 1.9.1961/22.9.1961.

The parties to the litigation are the heirs and legal representatives of late Khargi. On one side is Sonpal son of Khargi from his first wife and on the other side is Smt. Kalawati the second wife of Khargi and his daughter Smt. Munni from his second wife.

After the death of his father, the plaintiff Sonpal instituted an original suit No. 44 of 1974 against his step mother Smt. Kalawati and step sister Munni, claiming 1/3rd share in both the houses and for partition and possession of his share thereof, alleging that both the properties are ''benami'' in the name of Smt. Kalawati and Munni. The real owner was his father and therefore, on his death he is entitled to 1/3rd share. The Court of first instance held that the first property is the exclusive property of Smt. Kalawati and is not ''benami''. The second property is the joint property of Smt. Kalawati and Khargi both and is ''benami'' in the name of Munni. As Khargi had half share in it therefore, Sonpal has inherited 1/3rd share i.e. to the extent of 1/6th in the scond proprty. Against the judgment, order and decree so passed by the Court of first instance both the parties went in appeal. The lower appellate Court dismissed the appeal of Smt. Kalawati and Smt. Munni Devi but allowed the appeal preferred by Sonpal. The lower appellate Court held that both the properties are ''benami'' in the name of Smt. Kalawati and Munni. The real owner was Khargi and, therefore, a decree in favour of Sonpal for partition of 1/3rd share was passed. Aggrieved by the judgment and order of the lower appellate Court and partly of the Court of first instance Smt. Kalawati and Smt. Munni have preferred this second appeal.

This appeal was admitted on 27.7.1979 and the following substantial question of law was framed:

As to whether the sale deed in question was Benami or not ?

I have heard Sri Vipin Saxena, learned Counsel for the appellants and Sri Swapnil Kumar, learned Counsel appearing for the respondent Sonpal now represented by his heirs and legal representatives.

The parties have raised no objection with regard to the above substantial question of law. It is also accepted that the provisions of the Benami Transaction (Prohibition) Act, 1988 are not applicable as the aforesaid Act is perspective in nature and does not apply to the sale deeds and the suit instituted prior to the enforcement of the Act.

In order to examine as to whether the above two sale deeds are ''benami'' transactions it may first be stated that a ''benami'' transaction is one, where one person buys a property in the name of the other. In this view a ''benamidar'' is only a lender of his name to be the real owner for purchasing a property. He is therefore, an ostensible owner and has no interest at all in the property which has been purchased in his name. He only represents the real owner. However, as the sale deed is a solemn document which is generally prepared and executed after considerable deliberation, therefore, the person expressly shown to be the purchaser is apparently presumed to be its real owner unless contrary is shown and proved.

It is also a well established that the burden of proof that a particular sale ''benami'' in the name of a person mentioned therein and he is not the real owner is always upon the person who asserts that the transaction be ''benami''. The burden has to be strictly discharged by adducing evidence of a definite character.

It is equally settled that for proving a ''benami'' transaction, the person who is asserting that the transaction is ''benami'' has to prove, (i) that the sale consideration has come from the person other than the person in whose name the property stands; and (ii) that the person contributing to the sale consideration had no intention that the property so purchased should be for the benefit of such ostensible owner.

In the background of the above legal position the learned Counsel for the appellant has argued that the plaintiff Sonpal is the person who is asserting that the two sale deeds are ''benami'' and, therefore, unless and until he satisfies and proves the aforesaid two elements, the suit could not have been decreed in his favour. The lower appellate Court has taken a completely wrong approach in dealing with the aforesaid two points in concluding that the transactions are ''benami''.

Sri Swapnil Kumar has countered the above argument placing reliance upon the findings recorded by the lower appellate Court and has contended that the lower appellate Court after taking into consideration all the factual situation has returned a finding that the properties were purchased ''benami'' by Khargi and this being a finding of fact, the Court hearing the second appeal has no jurisdiction to interfere.

In order to prove that the two sale deeds are ''benami'', the plaintiff Sonpal has basically adduced oral evidence in the form five witnesses including himself. To counter the same, five witnesses were examined from the side of the defendants Smt. Kalawati and Munni. The Court of first instance after analysing the entire oral evidence as well as the documentary evidence concluded that the first property is not ''benami'' and Smt. Kalawati is its real and exclusive owner. In recording the said finding the Court of first instance rightly held that as in the sale deed Exbt. 2 Smt. Kalawati is mentioned to be its real purchaser, it shall be presumed that she is the real owner unless contrary is proved by cogent and specific evidence. Law presumes what is apparent to be real unless proved otherwise. No material evidence was produced by the plaintiff Sonpal to prove that Khargi was the real owner who had actually paid the sale consideration out of his own funds and that he had sufficient income of his own to purchase it. The fact that Smt. Kalawati is the real owner stands corroborated by the recital in the mortgage deed dated 6.9.1961 Exbt. A-68. This is a mortgage deed which was jointly executed under the signatures of Smt. Kalawati and late Khargi mortgaging the first house for the purposes of raising a loan of Rs. 1000/- for purchasing of the second property. The said mortgage deed in unequivocal terms states that the land of Arazi No. 996 on which exists the first house has been purchased by Smt. Kalawati. The said mortgage deed is not in dispute and clearly proves that late Khargi accepted that the first property was the exclusive property of Smt. Kalawati. The above acceptance by the recital in the mortgage deed amounts to an admission of the aforesaid fact on part of Khargi. Admission is the best evidence unless it is explained or withdrawn for sufficient reasons which has not been done. The aforesaid fact also stands fortified from the conduct of Khargi who right from 1949 when the sale deed in respect of the first property was executed and till his death in the year 1971, had not raised any objection with regard to the ownership of the said property by Smt. Kalawati despite due knowledge. It also proves that he had no intention to claim its ownership and on the contrary the intention was that it is for the benefit of his second wife Smt. Kalawati only. The plaintiff Sonpal is claiming rights over the said property through his late father alone and as such he is bound by the admission of his father so made. In view of the aforesaid facts and circumstances, the finding of the lower Court that the plaintiff Sonpal has failed to prove that the first property was a ''benami'' property in the name of Smt. Kalawati is perfectly justified.

Besides this, in view of the legal presumption that the person whose name is in the sale deed is the real owner, Smt. Kalawati was not required to proved her own income or means for purchasing the property. Evidence to this effect on her part was immaterial and would have defeated the purpose of the legal presumption which stood in her favour. Therefore, the burden was completely upon the plaintiff Sonpal to prove the sale deed to be ''benami'' and the evidence about the income or availability of funds with Smt. Kalawati was not at all material and relevant. Thus, the approach adopted by the lower appellate Court is manifestly erroneous. It erred in holding that as Smt. Kalawati has failed to prove the availability of funds with her for purchasing the property and as she was not having sufficient independent income the property was in real sense the property of late Khargi. This has been done by the lower appellate Court in complete disregard to the legal presumption that what is apparent is presumed to be real and for proving such presumption no evidence is required.

The approach of the lower appellate Court in substituting its own finding in this respect also appears to be totally faulty. The lower appellate Court has not considered any of the above documentary evidence specially the admission contained in the mortgage deed and the oral evidence of the parties.

It is tirite to mention that though the appeal before the lower appellate Court was on facts as well as on legal aspects and the lower appellate Court was authorised to reappraise the evidence to come to its own conclusion but before substituting its own finding in place of those recorded by the lower Court normally the appellate Court should have applied its mind to the reasons given by the trial Court and it should have also recorded its own convincing reasons for disagreeing with the same before recording its own findings by analysing the evidence on record. The lower appellate Court had not followed the above principle. It has not considered the reasons given by the trial Court nor has analysed the entire evidence so as to record its own finding by giving reasons for disagreeing with the findings of the lower Court.

It has repeatedly been laid down that a finding of fact which has been recorded by the lower Court should not lightly be disturbed unless the approach of the lower Court in appraisal of evidence is found to be erroneous or against the well established principles of law (refer to Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, and 2008(5) ADJ 116 (SC) Jagdish Singh v. Madhuri Devi). In the instant case, the lower appellate Court has no where concluded that the Court of first instance has wrongly applied the principles of law. The finding on the above aspect was given by the lower Court on the basis of the documentary as well as oral evidence but the lower appellate Court substituted its own finding solely on the basis of the oral evidence without even analysing the same. Thus, I find the manner in which the lower appellate Court had proceeded was against the settled norms of practice which were required to be followed by the appellate Court, though it was authorised under law to re-appreciate the entire evidence and to come to its own conclusion. Nonetheless, the principle that the appellate Court should normally be slow in interfering with the finding of the trial Court was not adhered to.

The lower appellate Court in fact, completely lost track of the legal principle that to succeed in a given suit, the plaintiff has to stand on his own legs and has to prove his case and if he fails to do so he cannot get any advantage of the evidence adduced by the defence.

Since in substituting the finding, the lower appellate Court has adopted a totally illegal approach divorced of the settled legal principles regarding the effect of the legal presumption, the Court in second appeal is fully justified in following the finding of the lower Court which appears to be more in consonance with law and to ignore that which has been substituted by the appellate Court.

Accordingly, it is held that the sale deed dated 30.4.1949 is not ''benami'' in the name of Smt. Kalawati who is in fact is the real owner of the first house situate over plot No. 996 Etah.

A perusal of the judgment and order of the lower appellate Court further reveals that it had not only allowed the appeal of the plaintiff-appellant but has also dismissed the appeal of the defendant Smt. Kalawati and Munni assailing the decision of the lower appellate Court in respect of the second property. However, there is no discussion in the judgment and order of the lower appellate Court about the second sale deed being ''benami'' or not. In other words, the appeal of the Smt. Kalawati and Munni has not been considered and dealt with by the lower appellate Court while dismissing the same. This is again an apparent defect. Thus, the dismissal of the said appeal cannot be sustained under law. However, the lower Court has recorded a finding of fact that the sale consideration for purchasing the second property had been contributed both by Khargi and Smt. Kalawati therefore, they happen to be real owners of the said property purchased which was by them ''benami'' in the name of minor Munni. Accordingly, both of them had half share and on the death of Khargi his half share devolved upon all his three heirs in equal proportion i.e. 1/3rd each. In view of the said finding this Court of second appeal is not required to go into the merits of such finding of fact which has been returned by the lower Court on the basis of evidence on record particularly, when there is no legal defect in the approach of the lower Court in returning the said finding.

In view of the aforesaid facts and circumstances, this second appeal is allowed in part. The judgment, order and decree of the lower appellate Court dated 27.10.1978 passed in civil appeal No. 187 of 1976 (Sonpal v. Smt. Kalawati and Anr.) and civil appeal No. 5 of 1977 (Smt. Kalawati and Anr. v. Sonpal) are set aside and the judgment, order and decree dated 17.9.1976 passed by the Civil Judge in original suit No. 44 of 1974 (Sonpal v. Smt. Kalawati and Anr.) is confirmed.

Parties to bear their own costs.